Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-8-1995

Squires v Bonser
Precedential or Non-Precedential:

Docket 94-7035




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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT

                        _______________

                          NO. 94-7035
                        _______________

                      JOSEPH SQUIRES, SR.
                               Appellant

                                v.

                 THOMAS BONSER; JAY E. HUFFMAN;
                   MIDDLE SMITHFIELD TOWNSHIP
                                Appellees


                        _______________


        On Appeal from the United States District Court
            for the Middle District of Pennsylvania
                       D.C. No. 92-00908
                        _______________

                   Argued September 20, 1994
                        _______________

            Before: BECKER and COWEN, Circuit Judges
                   and POLLAK, District Judge*

                      (Filed   May 8, 1995)

                        _______________

                                 Cletus P. Lyman, Esq. (argued)
                                 Lyman & Ash
                                 1612 Latimer Street
                                 Philadelphia, PA 19103

                                          Attorney for Appellant

                                 Angela L. Dumm, Esq. (argued)
                                 Marshall, Dennehey, Warner,

*
 . Honorable Louis H. Pollak, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
                                   Coleman & Goggin
                                 1845 Walnut Street
                                 Philadelphia, PA 19103
                                         Attorney for Appellees

                          ______________

                       OPINION OF THE COURT
                          _______________

POLLAK, District Judge.



           This appeal addresses the district court's denial of

reinstatement in a case arising under 42 U.S.C. § 1983.    The jury

sustained appellant's constitutional claim, finding that

appellees' decision not to reappoint appellant to a further

annual term as township working roadmaster was predicated on

appellant's exercise of his First Amendment rights; accordingly,

the jury awarded damages to appellant.     But the district court,

in the exercise of its equitable discretion, declined to direct

that appellant be reinstated as working roadmaster.    On review of

the reasons assigned by the district court for not ordering

reinstatement, we conclude that those reasons do not adequately

support the district court's decision not to provide make-whole

relief.   Accordingly, we will reverse the judgment of the

district court and remand for entry of an order of reinstatement

and for a new trial on compensatory damages.


                                I
           Appellant Squires, appellee Bonser, and appellee

Huffman constitute1 the membership of Middle Smithfield

Township's board of township supervisors (hereinafter "the

Board").   The three-member Board is responsible for "[t]he

general supervision of the affairs of the township."   53 Pa.

Cons. Stat. Ann. § 65510.2   Squires, a Republican, has served on

the Board since January 1, 1984.   Bonser and Huffman, both

Democrats, have served on the Board since, respectively, January

1, 1976, and January 1, 1986.

           Included among the Board's powers is that of appointing

superintendents or roadmasters to work on and maintain the roads.

Pennsylvania law expressly allows for a member of the Board to


1
 . In using the present tense, we characterize the case as it
stood when the record and briefs on appeal were filed; the
parties have not suggested, either at oral argument in this court
or thereafter, that the posture of the case has undergone any
significant change.
2
 . Middle Smithfield Township is organized pursuant to the
Second Class Township Code, 53 Pa. Cons. Stat. Ann. § 65101 et.
seq. Section 65510 provides in full:

                The general supervision of the affairs
           of the township shall be in the hands of
           three registered electors of the township,
           who shall be styled township supervisors,
           except that when upon referendum the election
           of two additional supervisors is provided
           for, the general supervision of the affairs
           of the township shall be in the hands of five
           registered electors of the township, who
           shall be styled township supervisors.

53 Pa. Cons. Stat. Ann. § 65510 (Supp. 1994).
serve as a superintendent or roadmaster.   See 53 Pa. Cons. Stat.

Ann. § 65514.3

          From 1984 through 1989, Squires held the position of

part-time roadmaster.   In January, 1990, Squires was appointed by

the Board at its annual reorganizational meeting to the full-time

position of working roadmaster, a position in which Squires had

responsibility for supervising the construction, maintenance, and

3
.   Section 65514 provides in part:

               The board of township supervisors,
          immediately after their organization, shall
          divide the township into one or more road
          districts. They shall employ a
          superintendent for the entire township or a
          roadmaster for each district. . . . The
          supervisors shall fix the wages to be paid .
          . . to the superintendent or roadmasters and
          laborers for work on the roads and bridges,
          which wages shall not exceed wages paid in
          the locality for similar services.

               This section shall not prohibit the
          township supervisors from being employed as
          superintendents or roadmasters, or as
          laborers, if physically able to work on and
          maintain the roads. With regards to boards
          of supervisors which are designated as three-
          member boards, any supervisor who is to be
          considered by such a board for position as a
          compensated employee of the township, as
          authorized by this section, shall not be
          excluded from voting on the issue of such
          appointment; such action shall be deemed to
          be within the scope of authority as a
          supervisor and shall not be deemed to
          constitute an illegal or an improper conflict
          of interest.

53 Pa. Cons. Stat. Ann. § 65514 (Supp. 1994).
repair of the Township's roads.   Squires' appointment as working

roadmaster had the support of both Bonser and Huffman.   Squires

was reappointed to the position in January 1991, again with the

support of Bonser and Huffman.    In January 1992, Squires was not

reappointed and Bonser became the working roadmaster.

          On July 2, 1992, Squires instituted this § 1983 action

against Bonser, Huffman, and the Middle Smithfield Township,

contending that his non-reappointment to the position of working

roadmaster constituted a violation of his First Amendment rights.

Specifically, Squires undertook to show at trial that the non-

reappointment occurred in retaliation for: (1) comments made by

Squires to Huffman in 1991 in which Squires defended his son's

candidacy for a position on the Board;4 and (2) criticism by

Squires in 1988, 1989, and 1991 of Huffman's participation in

certain township matters  in particular, Squires' allegations

that Huffman, an electrical contractor, had a conflict of

interest in performing contracting work for several developers

who had matters pending before the Board.

          On April 27, 1993, the jury returned a verdict for

Squires, awarding him $37,100 in compensatory damages and $1,500

in punitive damages.   On May 7, 1993, Squires filed a motion with

the district court for reinstatement to the position of working


4
 . Squires' son ran against Huffman in the November 1991
election for a position on the Board. Huffman won the 

.
roadmaster.    The motion for reinstatement was denied on December

14, 1993.    Squires has appealed.


                                 II

                                 A

            Reinstatement is an equitable remedy available in

unconstitutional discharge cases arising under § 1983.      Versarge

v. Township of Clinton, New Jersey, 

, 1368 (3d Cir.

1993).5   The decision whether to award reinstatement thus lies

within the discretion of the district court.

            In reviewing an order denying reinstatement, we do not

substitute our judgment for that of the district court.      We do,

however, have an obligation to examine whether the equitable

factors considered by the district court and the weight given to

those factors are appropriate in light of the purposes underlying

5
 . Section 1983, authorizing both legal and equitable relief,
provides in pertinent part:

            Every person who, under color of statute,
            ordinance, regulation, custom, or usage, of
            any State or Territory or the District of
            Columbia, subjects, or causes to be
            subjected, any citizen of the United States
            or other person within the jurisdiction
            thereof to the deprivation of any rights,
            privileges, or immunities secured by the
            Constitution and laws, shall be liable to the
            party injured in an action at law, suit in
            equity, or other proper proceeding for
            redress.

42 U.S.C. § 1983 (1994).
the statutory cause of action.   As we stated in Gurmankin v.

Costanzo, 

(3d Cir. 1980), cert. denied, 

(1981):
          Meaningful appellate review of the exercise
          of discretion requires consideration of the
          basis on which the trial court acted. If the
          factors considered do not accord with those
          required by the policy underlying the
          substantive right or if the weight given to
          those factors is not consistent with that
          necessary to effectuate that policy, then the
          reviewing tribunal has an obligation to
          require the exercise of discretion in
          accordance with "what is right and equitable
          under the circumstances and the law."

(quoting Langnes v. Green, 

, 541

(1931)).   See also Albemarle Paper Company v. Moody, 

, 417 (1975) ("[W]hen Congress invokes the Chancellor's

conscience to further transcendent legislative purposes, what is

required is the principled application of standards consistent

with those purposes . . . .").

           In the context of discriminatory discharge actions

arising under Title VII, it is well established that the district

court's consideration of equitable remedies is to be guided by

the statute's central goals of make-whole relief and deterrence.

  Thus, the denial of a make-whole remedy must be

supported by "reasons which, if applied generally, would not

frustrate the central statutory purposes of eradicating

discrimination throughout the economy and making persons whole

for injuries suffered through past discrimination."   

(addressing denial of backpay).     See Franks v. Bowman Transp.

Co., 

, 771 (1976) (addressing denial of seniority

relief) (quoting Albemarle Paper).6    This court has previously

recognized, for example, that denial of reinstatement may be

appropriate in a Title VII action where "animosity between the

parties makes such a remedy impracticable."     Ellis v. Ringgold

School Dist., 

, 30 (3d Cir. 1987).

          This action arises under § 1983, whose "purpose . . .

is to deter state actors from using the badge of their authority

to deprive individuals of their federally guaranteed rights and

to provide relief to victims if such deterrence fails."       Wyatt v.

Cole, 

, 1830 (1992).     In 1871, in fashioning

§ 1983  as, in 1991, it was to do in revising (with a view to

strengthening) Title VII  Congress authorized courts to deploy

both legal and equitable remedies.     Under Title VII, the

statute's make-whole purpose "is shown by the very fact that

Congress took care to arm the courts with full equitable powers."

Albemarle 

.     The same is true under § 1983:

the make-whole goal "[does] not differ when the basis of the

underlying right is the Constitution rather than a statute such

6
 . Moreover, a district court, when denying make-whole relief,
is required to articulate its reasons for doing so. See Franks
v. Bowman Transp. 

("[I]f the district court
declines, due to the peculiar circumstances of the particular
case, to award relief generally appropriate under Title VII,
'[i]t is necessary . . . that . . . it carefully articulate its
reasons' for so doing." (quoting Albemarle 

n.14)).
as Title VII."   

.7   Because of this

consonance of the underlying policy considerations, the framework

of analysis governing reinstatement in Title VII actions also

governs in § 1983 actions implicating First Amendment concerns;

that is, a denial of reinstatement is unwarranted unless grounded

in a rationale which is harmonious with the legislative goals of

providing plaintiffs make-whole relief and deterring employers

from unconstitutional conduct.   Cf. 

(section 1983 cases involving "discrimination in employment based

on stereotyped notions of ability . . . require[] equitable

remedies comparable to those deemed appropriate in Title VII

employment discrimination cases").

          We appreciate that there may not be absolute congruence

between the equitable remedies long accepted under Title VII and

those conventional under § 1983, for the reason that, prior to

the revision of Title VII in 1991, the remedies available under

Title VII were entirely equitable, whereas § 1983 has always

provided both legal and equitable relief.   Given the pre-1991

disparity between the two statutes' remedial arsenals, it has


7
 . We have similarly recognized the make-whole purpose governing
remedies for employment discrimination cases arising under the
Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et
seq. See Maxfield v. Sinclair Intern., 

, 796 (3d
Cir. 1985) ("The inclusion of equitable relief strengthens the
conclusion that Congress intended victims of age discrimination
to be made whole by restoring them to the position they would
have been in had the discrimination never occurred."), cert.
denied, 

(1986).
been argued that the presumption in favor of reinstatement

developed under pre-1991 Title VII case law should not be

directly transferred to actions arising under § 1983.   See

Rosario-Torres v. Hernandez-Colon, 

, 321-22 (1st Cir.

1989) (en banc) ("The fewer the available methods of redress, the

more likely that 'sound legal principles' will counsel in favor

of reinstatement as the relief of choice.").

          We do not find it fruitful to explore how the

"presumption" or "preference" in favor of reinstatement in the

Title VII context compares in kind or degree with that applicable

to reinstatement under § 1983.   Suffice it to say that, while the

availability of legal relief under § 1983  and now under Title

VII  may influence the use of equitable remedies under these

provisions, the central goals of make-whole relief and deterrence

must guide a district court's consideration of reinstatement

under both.   Reinstatement advances the policy goals of make-

whole relief and deterrence in a way which money damages cannot.

As stated by the Eleventh Circuit in Allen v. Autauga County

Board of Education, 

, 1306 (11th Cir. 1982):
          When a person loses his job, it is at best
          disingenuous to say that money damages can
          suffice to make that person whole. The
          psychological benefits of work are
          intangible, yet they are real and cannot be
          ignored. . . . We also note that
          reinstatement is an effective deterrent in
          preventing employer retaliation against
          employees who exercise their constitutional
          rights. If an employer's best efforts to
          remove an employee for unconstitutional
          reasons are presumptively unlikely to
          succeed, there is, of course, less incentive
          to use employment decisions to chill the
          exercise of constitutional rights.


See also Banks v. Burkich, 

, 1164 (6th Cir. 1986)
("The prospect of money damages will not be sufficient for many

employees to overcome the otherwise chilling effect that

accompanies the threat of termination.").   Thus, while the

availability of money damages may have significance in the

district court's consideration of remedies, reinstatement is the

preferred remedy in the absence of special circumstances

militating against it.   See Feldman v. Philadelphia Housing

Authority, 

, 831 (3d Cir. 1994) ("The equitable remedy

of reinstatement is available for discharges that violate 42

U.S.C. § 1983, and reinstatement is the preferred remedy to cover

the loss of future earnings." (citations omitted)); 

(Garth, J., concurring in part and dissenting in part) ("It is

well settled that reinstatement is the preferred remedy to avoid

future lost earnings.").8   In sum, we think the First Circuit had

it right in its well-reasoned en banc opinion in Rosario-Torres:


8
 .   Cf. Robinson v. S.E. Pa. Transp. Auth., Red Arrow, 

, 899 (3d Cir. 1993) (Title VII) ("[R]einstatement is the
preferred remedy to avoid future lost earnings . . . ."); 

(Title VII) ("Reinstatement is the preferred
remedy to avoid future lost earnings."); Blum v. Witco Chemical
Corp., 

, 373 (3d Cir. 1987) ("Back pay coupled with
reinstatement is the preferred remedy to avoid future damages in
ADEA cases."); 

(ADEA) ("Reinstatement
is the preferred remedy to avoid future lost earnings, but
reinstatement may not be feasible in all cases.").
          Whenever an ex-employee sues alleging
          wrongful dismissal by a government agency,
          job restoration may be a material aspect of
          meaningful relief. Yet in the real world,
          reinstatement in unlawful-discharge cases
          often will place some burden on the agency:
          there will likely be tension (or even
          hostility) between the parties when forcibly
          reunited; employees who have assumed duties
          previously performed by the fired worker will
          have to be displaced when he or she returns;
          and, as a result, the public's business may
          be conducted somewhat less efficaciously. Be
          that as it may, we agree with those courts
          which have ruled that such routinely
          "incidental" burdens, in their accustomed
          manifestations, are foreseeable sequelae of
          defendant's wrongdoing, and usually
          insufficient, without more, to tip the scales
          against reinstatement when first amendment
          rights are at stake in a section 1983 action.
               We do not perceive such a positioning of
          the weighbeam as a departure from general
          equitable principles. It is, rather, merely
          a way of setting a starting-point for the
          district court's consideration. Once this is
          understood, the "presumption" of
          reinstatement becomes just the dress of
          thought, a shorthand manner of saying that
          equitable considerations different in kind or
          degree from those regularly accompanying
          reinstatement must be present if
          reinstatement is to be withheld from the
          victim of a first amendment 

(citations omitted).   Cf. Professional Ass'n

of College Educators v. El Paso County Community College Dist.,

, 269 (5th Cir. 1984) ("[T]he court should deny

reinstatement in a first amendment wrongful discharge case on the

basis of equity only in exceptional circumstances."), cert.

denied, 

(1984); 

(reversing
district court's denial of reinstatement in a § 1983 action where

record did "not . . . establish this as one of those 'exceptional

cases in which reinstatement is inappropriate'" (quoting 

)).9

          With these principles in mind, we turn to examine the

factors relied upon by the district court to support its denial

of Squires' motion for reinstatement.


                               B

          The district court found that the following

circumstances supported a denial of reinstatement: (1) "the

evidence at trial did not overwhelmingly support Squires' claim

of constitutional deprivation"; (2) "[t]here were incidents of

poor performance by plaintiff"; (3)   plaintiff "would still be

required to work at the side of the defendants"; (4)

"[r]einstatement would create a delicate balance which could

jeopardize required township business which remains the

responsibility of the supervisors who, in Pennsylvania, uniquely

serve as the executive as well as the legislative branches of

government"; (5) this was not "a case where plaintiff has been

unable to secure employment"; and (6) reinstatement would "not




9
 . Moreover, in § 1983 unconstitutional discharge cases, as in
Title VII cases, the district court is required to articulate its
reasons when denying reinstatement. 

n.6.
result in the restoration of seniority or pension benefits."

Squires v. Bonser, et al., No. 92-908   (M.D. Pa. Dec. 14, 1993).

          We find that these factors, as developed on the record

before us, do not present special circumstances which justify the

denial of reinstatement:

          The first factor  the district court's assessment

that the evidence "did not overwhelmingly support Squires' claim

of constitutional deprivation"  is an impermissible factor for

the district court to consider.   Once the jury has found in favor

of plaintiff on liability, the existence of a constitutional

deprivation is an established fact which may not be re-examined

in the district court's subsequent determinations  including

determinations of appropriate equitable remedies.   See United

States Equal Employment Opportunity Commission v. Century

Broadcasting Corp., 

(7th Cir. 1992) ("'[I]n

deciding whether to grant equitable relief under Title VII, the

district court [is] prohibited from reconsidering any issues

necessarily and actually decided by the jury.'" (quoting Hussein

v. Oshkosh Motor Truck Co., 

, 355 (7th Cir. 1987)));

cf. Curtis v. Loether, 

, 196 n. 11 (1974) (where a
case encompasses claims for both legal and injunctive relief,

"the right to jury trial on the legal claim, including all issues

common to both claims, remains intact"); Roebuck v. Drexel

University, 

(3d Cir. 1988) (the "preeminence of jury

verdicts" requires that "the jury's findings on a § 1981 claim .
. . [bind] the trial judge's resolution of a concurrently tried

Title VII claim" on issues common to both claims).   For the

district court to accord weight to its view that the evidence

supporting the jury's finding was not "overwhelming" would

impermissibly interfere with the province of the jury.10

          The second factor mentioned by the district court was

"incidents of poor performance by plaintiff."    Under the Mount

Healthy framework applicable to First Amendment unconstitutional

discharge cases arising under § 1983, a finding of liability

against the employer requires the inference that, absent the

unconstitutional conduct, the adverse employment action would not

have occurred.11   Denying reinstatement merely upon a showing of

10
 . We note that the jury found the evidence sufficiently strong
so as to justify a punitive damages award of 

. In awarding punitive damages, the jury evidently found, in
accordance with the district court's instruction on punitive
damages, that the defendants had acted "with malicious intent to
violate the plaintiff's Federal rights, or unlawfully to injure
him, [or] . . . with a callous or reckless disregard of the
plaintiff's rights." 

11
 . The distribution of the burden of proof in First Amendment
unconstitutional discharge actions was established by the Supreme
Court in Mount Healthy City School Dist. v. Doyle, 

(1977). Under the Mount Healthy framework, the plaintiff bears
the burden of showing that "his conduct was constitutionally
protected, and that this conduct was a 'substantial factor' or,
to put it in other words, that it was a 'motivating factor' in
the [defendant's] decision not to rehire him." Mount 

. If plaintiff carries that burden, the employer
bears the burden of showing "by a preponderance of the evidence
that it would have reached the same decision as to [plaintiff's]
reemployment even in the absence of the protected conduct." 

v. Pittsburgh Bd. of Education, 

, 1074-
75 (3d Cir. 1990) (applying Mount Healthy framework).
(..continued)
     Given this distribution of the burden of proof, a liability
verdict for plaintiff requires the inference that the employer's
decision would not have been reached in the absence of the
protected conduct. As discussed in Price Waterhouse  in which
the Supreme Court applied the Mount Healthy framework to "mixed-
motives" cases arising under Title VII  "[a] court that finds
for a plaintiff under [the Mount Healthy] standard has
effectively concluded that an illegitimate motive was a 'but-for'
cause of the employment decision." Price Waterhouse v. Hopkins,

, 248 (1989) (plurality opinion). See also 

(O'Connor, J., concurring) (the "evidentiary scheme [adopted
in Price Waterhouse] essentially requires the employer to place
the employee in the same position he or she would have occupied
absent discrimination" (citing Mount Healthy in comparison)).
     The jury instructions provided by the district judge, while
generally following Mount Healthy, seem to have been somewhat
imprecise as to the relative burdens of proof. The district
judge first stated that plaintiff had the burden of proving that
his speech activities were "a substantial factor or motivating
factor" in the decision not to reappoint him as 

. The district judge then stated that if plaintiff
carried its burden, defendants had the burden of showing "by a
preponderance of the evidence that the plaintiff would have been
dismissed or not reappointed in any event." 

Finally, the district judge said:

          If the defense meets its burden of proof that
          plaintiff would have been dismissed or not
          reappointed in any event, plaintiff must
          satisfy you by the preponderance of the
          evidence that the reasons offered by the
          defense were simply a pretext. And that,
          indeed, motivation to rid him because of his
          speech was still a substantial factor in the
          actions of each defendant.

This final instruction may be seen as introducing
ambiguity into the Mount Healthy formulation: i.e., this
instruction may be read as meaning that a verdict could be
returned in favor of the plaintiff even if the defendants had
proved that they would not have reappointed plaintiff in any
case. Appellees have not, however, placed this aspect of the
case in focus on appeal. Consequently, appellees are bound to
the results which normally flow from a finding of liability under
the Mount Healthy framework.
run-of-the-mill incidents of sub-par performance would

substantially undercut the goal of providing make-whole relief.

Thus, we do not find that such a showing constitutes a special

circumstance militating against reinstatement.12

          The third and fourth factors identified by the district

court  that plaintiff "would still be required to work at the

side of the defendants" and that "[r]einstatement would create a

delicate balance which could jeopardize required township

business"  are also not buttressed by findings sufficient to

make them permissible considerations.   In order to deny

reinstatement, more than the ordinary tensions accompanying an

unconstitutional discharge lawsuit must be present.   "The fact

that reinstatement might have 'disturbing consequences,' 'revive

old antagonisms,' or 'breed difficult working conditions' usually

is not enough 'to outweigh the important first amendment policies

that reinstatement serves [absent] probable adverse consequences


12
 . Denial of reinstatement may be appropriate in cases
involving employee misconduct of a particularly egregious kind,
but in the case at bar the district court has made no findings of
this sort. See Professional Ass'n of College 

(harassment of president of the college through anonymous
telephone calls may justify decision not to reinstate former
dean). Reinstatement may also be denied where after-acquired
evidence establishes "wrongdoing . . . of such severity that the
employee would have been terminated on those grounds alone if the
employer had known of it at the time of the discharge." McKennon
v. Nashville Banner Publishing Co., 

, 886-87
(1995). It has not been found by the district court or contended
here that this case falls under the after-acquired evidence
rubric.
[that] weigh so heavily that they counsel the court against

imposing this preferred remedy.'"   

(quoting Professional Ass'n of College 

); cf. 

(ADEA) ("Unfortunately,

reinstatement is not always feasible, e.g., because of

irreparable animosity between the parties . . . ."); McKnight v.

General Motors Corp., 

, 116 (7th Cir. 1990) (Title

VII) ("Mere hostility by the employer or its supervisory

employees is of course no ground for denying reinstatement . . .

That would arm the employer to defeat the court's remedial

order."), cert. denied, 

(1991).   Since the district

court made no finding that tensions between the parties exceeded

those which normally accompany such actions  and, indeed,

expressly recited that it did "not . . . conclude that such

animosity is irreparable"  these considerations do not justify

a denial of reinstatement.13

          Finally, the fifth and sixth factors identified by the

district court  that this was not "a case where plaintiff has

been unable to secure employment," inasmuch as "[a]t all times he

had his own contracting business, and after his termination, he

was employed full time at an ACME market"; and that


13
 . As of the time the briefs on appeal were filed, it appeared
that Squires was still a member of the Board and Bonser was
working roadmaster, 

n.1., which would seem to mean that
a "delicate balance" would exist whether or not Squires were to
replace Bonser as working roadmaster.
"[r]einstatement will not result in the restoration of seniority

or pension benefits"  do not present special circumstances that

cut against reinstatement.   While these factors indicate that

front-pay may come closer to providing make-whole relief than it

otherwise might, they do not negate the additional psychological

and deterrent benefits which reinstatement provides.     Cf. 

.   Moreover, in considering that, after losing

his township position, the plaintiff was able to find alternative

employment, the district court failed to give adequate

consideration to the comparability of that new employment.    We do

not believe that the fact that Squires was able to get a job in

the produce section at an ACME market militates against granting

him reinstatement as the township's working roadmaster.

          In sum, we conclude that denial of reinstatement for

the reasons assigned by the district court was not a proper

exercise of that court's equitable discretion.14

14
 . Appellees cite an additional factor, not discussed by the
district court, in support of denying reinstatement. Appellees
argue that it would be inappropriate for Squires to be reinstated
because the position of working roadmaster is a one-year
appointment. Since the decision challenged by Squires was the
non-reappointment of Squires in 1992, appellees contend that an
order for reinstatement at this time would "interfere with the
statutory scheme for appointing roadmasters." Appellees' Br. at
21. We agree that ordering reinstatement does, in some measure,
intrude upon the statutory scheme. But the jury, through its
verdict in Squires' favor, has determined that defendants have
skewed the statutory scheme by infringing upon Squires' First
Amendment rights. Reinstatement comes into play as a make-whole
remedy vindicating those rights and thereby restoring the
constitutional integrity of the statutory scheme.
                                 III

            Appellees have offered a further reason why

reinstatement was properly denied.     Appellees contend that,

because reinstatement and front-pay are alternative forms of

relief, and because Squires was awarded front-pay damages by the

jury, relief in the form of reinstatement is barred.

            We disagree.   It is true that if front-pay was awarded,

a grant of reinstatement would raise concerns regarding double

recovery.   Such concerns could be alleviated by an order vacating

any front-pay award; however, it may not be possible in this case

to isolate the front-pay award since the jury awarded a lump-sum

amount for compensatory damages.15     But this does not foreclose

reinstatement; rather, it means that the issue of double recovery

should be resolved by a new trial on compensatory damages.       Cf.

Savarese v. Agriss, 

, 1205-06 (3d Cir. 1989)

(remanding for a new trial on compensatory damages where there

may have been overlap between backpay award determined by the

15
 . Question Three of the verdict form, to which the jury
responded with the lump-sum award of $37,100, read: "What
compensatory damages, if any, did the plaintiff 

. In instructing the jury regarding the components of the
damages award, the district judge stated that "[p]laintiff is
entitled to be compensated for any wages that you find that he
lost up to this date, or any wages that you find that he may lose
in the future." 

district judge and compensatory damages award determined by the

jury); Greminger v. Seaborne, 

, 278-79 (8th Cir.

1978) (remanding for redetermination of monetary award where

there may have been overlap between backpay award and

compensatory damages award).    Therefore, the fact that the jury

was instructed on front-pay does not preclude a judicial

determination that equitable relief in the form of reinstatement

is called for.16


                                  IV

           In sum, the factors enumerated by the district court do

not present special circumstances justifying the denial of

reinstatement.     Further, reinstatement is not precluded by the

fact that the jury may have included front-pay in its damages

award.   Accordingly, we will vacate the district court's order

denying reinstatement and remand the case for entry of an order

of reinstatement and for a new trial on compensatory damages.



16
 . However, we discourage the practice of asking the jury for a
lump-sum award which includes front-pay when the plaintiff also
seeks reinstatement. Such a procedure wastes judicial resources
in that if reinstatement is awarded a retrial is then required to
parcel out the damages into component parts (i.e., front-pay
versus back-pay). Accordingly, we believe the preferable course
for a plaintiff seeking the equitable remedy of reinstatement is
for such a plaintiff to ask for a jury interrogatory concerning
the amount of damages attributable to front-pay in order to avoid
a double recovery. In the future, we may require such a practice
in order to preserve a claim for reinstatement.